P.S. Mishra. J.

This appeal by the defendants in a suit for partition was filed in this Court on 26-2-1975.

Its records suffered under the floods of August, 1975 and after re-constructing the records, it could be heard under Order 41 Rule 11 of the Code of Civil Procedure only on 10-11-1980. L.M. Sharma, J while admitting the appeal noticed as many as four questions of law, but all relating to the merit of the case. The appellants had, however, filed an application under section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act, No. XXII of 1956) (hereinafter to be referred to as the Act). A question of law directly arising in the, appeal on the basis of the said petition, however, was not formulated at the time of admission of the appeal. Later, however, when this application was placed for orders before L.M. Sharma, J, in view of the fact that there has been a counter affidavit filed by the plaintiffs-respondents, it was ordered to be taken up at the time of final hearing of the appeal.

2. Learned counsel for the appellants has pressed his application under section 4(c) of the Act, at the first instance as in the event of his succeeding, the suit, the appeal in the Court below as well as the, appeal in this Court shall stand abated. No further investigation of the questions involved in the appeal, therefore, shall be necessary.

3. Section 4(c) of the Act, runs as extracted below:

"(c) every proceeding for the correction of records and every suit and proceeding In respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated:

Provided that if the State Government empowers any other officer appointed under this Act, to dispose of any proceeding relating' to survey settlement operations under the provisions of Chapter x of the Bihar Tenancy Act, 1885 (Bihar Act, viii, 1885), or Chapter 12 of Chotanagpur Tenancy Act, 1908 (Bengal Act, 1908) or Santhal Parganas Settlement Manual, 1872 (Manual 3, 1872) and transfer such proceeding to such officer for disposal, then the proceeding shall not abate or shall not be considered to have been abated:

Provided also that no such order shall be passed without giving to the parties notice by post or in-any other manner that may be convenient and after giving them an opportunity of being heard:

Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provision of this Act, and the rules made thereunder; Provided that the State Government may, by notification in the Official gazette, exempt any such proceeding, suit, appeal, reference or revision, or any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purposes of this Act:

Provided further that nothing in this section shall apply to any proceedings under Chapter XI and XII of the Code of Criminal Procedure, 1898 (Act v of 1898), section 48E of the Bihar Tenancy Act, (Act viii of 1885) and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962).

4. Title Partition Suit No. 18 of 1967 was filed in the year 1967. It was disposed of by a judgment and decree dated 30-9-1972. Respondent No.1, who is plaintiff No. 2 in the original suit, filed Title Appeal No. 179 of 1972 on 4-12-1972 which was finally disposed of by the learned Additional District judge 3rd Court, Arrah, on 18-1-1975. During the pendency of the appeal before hi